Granger v. Babin et al

Filing 75

RULING granting 52 Motion in Limine to exclude the testimony of inmate witnesses. The 55 Motion in Limine to limit or exclude a number of plaintiff's exhibits is DEFERRED until trial. Therefore, should the deferred issues arise at trial, they will be handled according to the applicable Federal Rules of Evidence and governing law. Signed by Judge James J. Brady on 8/25/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CLEVERN GRANGER
CIVIL ACTION
VERSUS
NO. 12-628-JJB-SCR
CAPTAIN PERCY BABIN, ET AL.
RULING ON DEFENDANTS’ MOTIONS IN LIMINE
Defendants have filed two Motions in Limine with this Court. The first motion is to
exclude the testimony of inmate-witnesses named by plaintiff (doc. 52). The second motion is to
limit or exclude the exhibits listed by plaintiff (doc. 55).
1. Motion in Limine: To exclude testimony of inmate witnesses (doc. 52)
Defendants filed a Motion in Limine to exclude the testimony of a number of plaintiff’s
named inmate-witnesses (doc. 52). In plaintiff’s proposed pretrial order these witnesses were
listed as giving testimony as to “Pattern and Practice of brutality” (doc. 48, p. 15). Defendants
urge that this testimony be excluded on the grounds that the testimony is irrelevant, unfairly
prejudicial to defendants, and prohibited character evidence (doc. 52-1, p. 1).
Defendants additionally assert that these witnesses were not listed in response to
interrogatories during discovery (doc. 52-2, p. 1-2). The attached interrogatory responses from
plaintiff show only Darrol Thompson was listed as an inmate witness (doc. 52-2, p. 1). However,
plaintiff provides the Court with an exhibit of plaintiff’s 26(a) initial disclosures that list nearly
all of the inmate-witnesses that defendants now seek to exclude (doc. 54-1, p. 1-2). The only
inmate-witness who is not listed in the initial disclosure is Ellis Jenkins (doc. 54-1, p. 1-2).
Defendants urge that since the dismissal of both Warden Rader and the claim that he
failed to train his subordinates, these claims of and the inmate-witnesses listed as testifying to a
pattern or practice of brutality are no longer relevant (doc. 52-1, p. 2). In addition to urging that

the testimony of these inmate-witnesses is not relevant, defendants find that such testimony
“would only waste time, confuse the issues of this case and mislead the jury” in contravention to
Rule 403 of the Federal Rules of Evidence. Plaintiff, in opposition, points to the standard of
“deliberative indifference,” which, in order to be satisfied, often requires plaintiff “show a
pattern of violations and that the inadequate training or supervision is obvious and obviously
likely to result in a constitutional violation (doc. 54, p. 2-3). In reference to “deliberative
indifference” plaintiff cites to Brown v. Callahan, 623 F.3d 429 (5th Cir. 2010) where the
relevant claim was that Sheriff Callahan maintained “an unconstitutional policy of deliberate
indifference to detainees,” and on review the Fifth Circuit found insufficient evidence of
deliberate indifference, reversing the lower court. Id. at 252. Callahan referenced the standard of
“deliberate indifference” as stated in Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996).
In Hare, the Court considered when the standard of deliberate indifference is relevant: “The
Supreme Court, in clarifying the scope of convicted prisoners’ Eighth Amendment rights, has
consistently held that liability for inaction attaches only when a prison official’s failure to act
amounts to deliberate indifference to the prisoner’s rights.” Hare, at 640 citing to Farmer, 114
S.Ct. at 1977 (emphasis added). In the instant case, the plaintiff’s claims against the defendants
do not allege defendants’ failure to act, but instead that defendants acted with excessive force
(doc. 1). The deliberate indifference standard, seemingly appropriate where a prison official’s
failure to act is at issue, has no relevance here with claims against officers for using excessive
force.
Plaintiff’s second argument for why the inmate-witnesses’ testimony is relevant is related
to plaintiff’s claim for punitive damages (doc. 54, p. 4). Plaintiff cites to the factors from BMW
of N. Am., Inc. v. Gore, 517 U.S. 559 as authority for why proof of a pattern of brutality is

relevant to claim for punitive damages under § 1983. Gore itself was not a § 1983 case. The Fifth
Circuit in Cooper v. Morales relied on Gore only for a determination of whether punitive
damages awarded by a jury were “constitutionally excessive.” 535 Fed.Appx. 425, 432. The
Fifth Circuit was not considering what type of evidence the plaintiff may use to support a claim
for punitive damages. The Court considered the Gore factors and the issue of whether the
defendant’s conduct was part of repeated action or an isolated event only to determine the
“degree of reprehensibility of the defendant’s action.” Cooper, at 432 (citing to Gore, 517 U.S. at
575). The degree of reprehensibility was then only used to determine if the punitive damages
awarded were excessive. Id. Neither Gore nor Cooper considers what evidence is appropriate to
support a claim for punitive damages. Therefore, neither provides authority for why inmatetestimony regarding an alleged pattern of brutality is relevant in this case about one incident of
alleged excessive force on November 22, 2011. Further, Cooper, even if it were relevant, is a per
curiam decision, not to be treated as precedent according to the 5th Cir. R. 47.5.4.
Finally, “[i]n Smith v. Wade, the Supreme Court held that a jury may award punitive
damages in a federal civil rights action based on 42 U.S.C. § 1983 ‘when the defendant’s
conduct is shown to be motivated by evil or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.’” Lincoln v. Case, 340 F.3d 283, 291 (5th
Cir. 2003) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Still, in the case before us the only
plaintiff is Mr. Granger, and this Court has only looked at the incidents that allegedly occurred
on November 22, 2011. In addition to the inmate-witnesses’ testimony of an alleged pattern of
brutality being irrelevant, such testimony would violate Rule 404(b) of the Federal Rules of
Evidence as inadmissible character evidence (doc. 52-1, p. 2-3). This evidence is irrelevant and
would do more to distract the jury by suggesting defendants’ prior bad acts tend to prove

defendants committed the bad acts alleged on November 22, 2011. This Court fails to see how
the inmate-witnesses’ testimony about alleged prior incidents goes to prove that the officerdefendants specific conduct on November 22, 2011 was in any way motivated by evil motive or
intent, or involved reckless or callous indifference to the federal protected rights of the plaintiff.
Id. (quoting Smith, 461 U.S. at 56).
2. Motion in Limine: To exclude or limit Plaintiff’s exhibits (doc. 55)
First, defendants seek exclusion of all medical records except those from November 22,
2011, the day of the alleged incident. Defendants urge that medical records from before and after
the date of the alleged incident are irrelevant (doc. 55-1). There is no disagreement from plaintiff
regarding the medical records from before the incident (doc. 56, p. 1-2). However, plaintiff urges
that post-incident medical records are relevant to show the degree of Mr. Granger’s injury, which
is necessary to prove excessive force was used on the day at issue (doc. 56, p. 1-2). This Court
finds defendants request to exclude all medical records except those from the date of the alleged
incident overly broad.
Next, defendants seek to exclude a “Medical Records Summary” because the summary is
not authenticated and is unfairly prejudicial and cannot be verified as to its origins (doc. 55-1,
p.2). The plaintiff does not raise any objections to excluding the “Medical Records Summary” in
his opposition to defendants’ Motion in Limine (doc. 56). The admissibility of the “Medical
Records Summary” shall be addressed when necessary at trial.
Defendants seek to exclude plaintiff’s exhibit “DHH medical lien” as it is not
authenticated, not relevant, and unfairly prejudicial (doc. 55-1, p. 3). Defendants were not yet
provided with such a lien. Plaintiff acknowledges that a “DHH statutory lien” has not yet been
received, but has been requested (doc. 56, p. 3). Plaintiff indicates that if a “DHH statutory lien”

is provided, then the most current will be produced at trial. At this point, the Court has no
evidence to rule on as the existence of a DHH medical lien is still in question. The admissibility
of the lien is deferred until trial.
Defendants seek to exclude plaintiff’s Administrative Remedy Procedure (ARP). The
plaintiff does not raise any objection to excluding the ARP in his opposition to defendants’
Motion in Limine (doc. 56). The admissibility of plaintiff’s Administrative Remedy Procedure is
deferred until trial.
Plaintiff’s Pretrial Order also lists defendants’ statements and discovery responses.
Defendants seek to exclude these statements as inadmissible hearsay, not subject to any hearsay
exception. The admissibility of defendants’ statements and discovery responses are deferred until
trial.
Defendants argue for the exclusion of plaintiff’s exhibits 6 and 9 because these
documents are irrelevant, a waste of time, and will confuse the issues and mislead the jury.
Exhibits 6 and 9 include the Louisiana Department of Public Safety and Corrections,
Disciplinary Rules and Procedures for Adult Offenders, as well as, Correction Services Health
Care Policies, respectively. Defendants correctly refer to this Court’s ruling on defendants’
Motion for Summary Judgment stating “without more, an alleged violation of state law,
regulation or procedure is not cognizable under § 1983” (doc. 49, p. 8). Accordingly, the Court
dismissed claims based on alleged violations of prison policies (doc. 49, p. 9). The plaintiff urges
that the disciplinary rules are relevant to punitive damages. The admissibility of these two
manuals is deferred until trial.
Defendant moved to exclude several more of plaintiff’s exhibits: Employee Manual,
Department Regulation, a portion of the Employee Manual and the state statute of La. R.S.

15:829, exhibits 7, 10, 11, and 12, respectively, as irrelevant, a waste of time, and likely to
confuse the issue and mislead the jury (doc. 55, p. 4). Defendant again points to the fact that no
state law claims remain in this case, and the only remaining claim is a § 1983 claim for excessive
force. Plaintiff, again urges that these exhibits are relevant to establishing punitive damages. The
Court defers ruling on the admissibility of these exhibits until trial.
Considering defendants’ Motions in Limine to exclude the testimony of inmate witnesses
(doc. 52) and to limit or exclude plaintiff’s exhibits (doc. 55);
IT IS HEREBY ORDERED that the Motion in Limine to exclude the testimony of
inmate witnesses is GRANTED and the Motion in Limine to limit or exclude a number of
plaintiff’s exhibits is DEFERRED until trial. Therefore, should the deferred issues arise at trial,
they will be handled according to the applicable Federal Rules of Evidence and governing law.
Signed in Baton Rouge, Louisiana, on August 25, 2014.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA